Mr. Scott Letteney, Deputy City Attorney, City of Racine, City
Hall, 730 Washington Avenue,
Racine, Wisconsin 53403, appeared on behalf of the City.

ARBITRATION AWARD

On January 24, 2012, Local 321, International Association of Firefighters and the
City of
Racine filed a request with the Wisconsin Employment Relations Commission, seeking to
have the
Commission appoint William C. Houlihan, a member of its staff, to hear and decide a
grievance
pending between the parties. A hearing was conducted on March 23, 2012 in Racine,
Wisconsin.
A transcript of the proceedings was taken and distributed by April 9, 2012. Post-hearing
briefs were
filed by May 5, 2012.

This Award addresses the consequences of refusing a call back to work.

BACKGROUND AND FACTS

The Racine Fire Department uses the California Plan to schedule its Firefighters.
Under the
California Plan, Firefighters are scheduled on a 9 day cycle. Firefighters are scheduled to
work days
1, 3 and 5 of the 9 day cycle. A day consists of 24 consecutive hours. Days

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2,4,6,7,8, and 9 are scheduled days off. The City runs 3 shifts. Each shift has a
Battalion Chief, who
is in charge, and who is tasked with calling in firefighters when there is a need to do so.

The events giving rise to this grievance are not in dispute. Eric Rasmussen is a
private in the
Racine Fire Department. Rasmussen was scheduled to work a normal schedule, as described
above.
Rasmussen had worked a trade with another Firefighter which involved him working on
October 6,
2011, which was day number 7 of his work cycle. On October 5 Rasmussen was called in to
work,
due to a staffing shortage. Rasmussen refused the call, noting that he was scheduled to work
on
October 4, that he had traded to work on October 6, and if he came in to work on October
5, he
would be working 72 continuous hours.

As a consequence of his refusal, Rasmussen was moved to the bottom of the Recall
list. The
Union takes issue with Rasmussen being moved to the bottom of the Recall list, and contends
that
he should have been left where he was, at or near the top of the list.

The City recalls firefighters from a constantly updated recall list. If a Firefighter
accepts a
recall or declines a recall for reasons not spelled out in Article XXVII, par. 8, which is set
forth
below, he or she is moved to the bottom of the recall list. A firefighter is free to decline a
recall, and
not be moved to the bottom of the list, under circumstances spelled out in Article XXVII,
par. 8. The
list recycles approximately twice in a calendar year. In essence, by declining the call-in
Rasmussen
lost one of the two opportunities he otherwise would have had for a 1 year period.

A grievance was filed, and denied, on October 28, 2011. Subsequent exchanges were
made,
without a resolution of the grievance.

The Union introduced evidence that Article XXVII, par. 8, which is set forth below,
has a
word missing, allegedly as a result of clerical error, and argues that the contract should be
reformed.
Article XXVII was amended in the negotiations leading to a 2006 ­ 2008 collective
bargaining
agreement. The revision was prompted by a proposal made by the City. That proposal, dated
March
29, 2006 consisted of the following:

10. Revise the Recall Procedure as follows:

Recall Procedure: Members shall be called back at the discretion of the
Chief.
Recalls shall be taken from the recall list which will be by the last recall date or by
date of hire. A message will be left on an answering machine or voice mail. When
the member calls back, if the position is filled, no compensation is due. A member's
name will not be removed from the recall list if he/she refuses the call-back because
the day for which he/she was called required that he/she work while on vacation or
holiday or if the recall creates 72 hours or more continuous hours of work.
Provided
there is an opening available, any Firefighter called back may be assigned to work
within his/her designated rank. Any call back of

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less than 17 hours will not remove an employee from his/her position on the recall
list.

The underlined portions of the proposal reflect areas of proposed change. The
proposal was
agreed upon, and became a part of the tentative agreement of the parties. The record
establishes that
Vic Long, the chief negotiator for the City, prepared summaries of the tentative agreements
on an
ongoing basis, and provided those summaries to the union. The record contains four such
summaries.
The first such summary, dated April 12, 2006 included the following tentative agreement:

Amend ARTICLE XXVII (8) as follows:

Recall Procedure: Members shall be called back at the discretion of the
Chief.
Recalls shall be taken from the recall list which will be by the last recall date or by
date of hire. A message will be left on an answering machine or voice mail.When
the member calls back, if the position is filled, no compensation is due. A member's
name will not be removed from the recall list if he/she refuses the call-back because
the day for which he/she was called require that he/she work while on vacation or
holiday or if the recall creates 72 hours or more continuous hours of work.
Provided
there is an opening available, any Firefighter called back may be assigned to work
within his/her designated rank. Any call back of less than 17 hours will not remove
an employee from his/her position on the recall list.

The T.A. is identical to the previous employer proposal. Three other T.A.
documents were
created by the employer. They are dated April 18, May 17 and May 24, 2006. Each contains
an
identical version of the tentative agreement.

What is common about each of these documents is that each of them contain the word
"or"
in the sentence identifying when a refusal will not lead to a firefighters name being removed
from
the recall list. The employer proposal and the T.A. documents each provide that a firefighter
will not
be removed from the recall list for refusing a call back " while on vacation or holiday
or (emphasis
added) if the recall creates 72 hours or more continuous hours of work."

When the 2006 collective bargaining agreement was printed the word "or" was
missing. The
text of that agreement was identical to the text of Article XXVII, par. 8, set forth below.
There is no
explanation as to how the word "or" came to be deleted. The contract text has not changed
from
2006 -2008 to the current contract, 2011 ­ 2012.

The Union offered evidence as to how the clause has been administered. Mark
Villalpando
testified that he had declined a call back under the same circumstances, and had not lost his
position
on the call back list. On cross-examination Villalpando indicated that the event(s) to which he
referred occurred 5-6 years ago. The Union also called Rick Moriarity to

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testify. Mr. Moriarity, who is retired, had been a Battalion Chief for the 11 years
which preceded his
retirement in January, 2011. As a part of his responsibilities he recalled firefighters on a
routine
basis. It was his testimony that there were numerous occasions in which firefighters declined
call
backs due to 72 continuous hour objections, frequently involving trades, and no one was ever
sent
to the bottom of the recall list.

On cross exam, Moriarity produced several names of firefighters who had declined
call
backs. Many of the events he described occurred "several years ago".

The City offered evidence as to how the clause has been administered. James
Madisen, a
Battalion Chief, testified on behalf of the City. It was his testimony that the recall list is
computerized and depending on how a refusal is coded either leaves a firefighter in place or
sends
the firefighter to the bottom of the list. Madisen testified that there were at least two
firefighters sent
to the bottom of the list in calendar 2011. Rasmussen was sent to the bottom of the list on
October
5. A firefighter named Romeis was sent to the bottom of the list on November 18, 2011.

Madisen also testified that there were a number of firefighters who worked 72
continuous
hours, including some who did so as a result of trades. On cross exam Madisen testified that
a
firefighter can refuse a call in on a vacation day or a holiday, without penalty, regardless of
whether
or not 72 continuous hours are worked. He further testified that when he is recalling
firefighters he
avoids 72 continuous hours. If he sees that a firefighter is scheduled the day before and the
day after
he will simply not call that firefighter to come in.

It was his testimony that the language in question was designed to be applicable to
days 2 and
4 of the schedule. He testified that it was not intended to be applicable to the 4 day block of
scheduled off days. He indicated this dispute arises in the four day block because the
scheduler may
not be aware of trade days that create the potential for a call back to create a 72 hour
continuous
work schedule.

ISSUE

The parties stipulated the issue to be:

Did the employer violate the collective bargaining agreement when it removed
Private Rasmussen's name from the top of the recall list and placed him on the
bottom of the recall list?

If so, what is the remedy?

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RELEVANT PROVISIONS OF
THE

COLLECTIVE BARGAINING
AGREEMENT

ARTICLE VI

MANAGEMENT RIGHTS

The City possesses the sole right to operate the Racine Fire Department and all
management rights repose in it, but such rights must be exercised consistently with
the other provisions of this Agreement and the past practices within the Racine Fire
Department unless the past practices are modified by this Agreement, or by the City
under rights conferred upon it by this Agreement, or the work rules of the Racine Fire
Department. These rights, which are normally exercised by the Chief of the Racine
Fire Department, include, but are not limited to, the following:

A) To direct all operations of the Racine Fire Department.

B) The Union acknowledges that the establishment and modification
of the rules
of the Racine Fire Department are within the sole authority of the City of
Racine and that it may establish, modify, or repeal rules without negotiations
of any type. New rules or changes in rules shall be posted in each Fire
Station five (5) calendar days prior to their effective date unless an
emergency requires more rapid implementation of the rule. The City agrees
that all rules will be reasonable with the reasonableness subject to the
Grievance Procedure starting at the second step.

. . .

ARTICLE XII

ARBITRATION

. . .

5) Scope of Award: The decision of the Arbitrator
shall be limited to the
grievance and shall be restricted solely to the interpretation of the Agreement
and such past practices as are existent in the Department unless said practices
have been modified pursuant to Article VI of this Agreement. The Arbitrator
shall not modify, add to or delete from the express terms of this Agreement
or past practices unless said practices have been amended pursuant to the
terms of Article VI of this Agreement. The determination of the Arbitrator
shall be final and binding upon the parties.

. . .

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ARTICLE XXVII

. . .

8) Recall Procedure: Members shall be called back at
the discretion of the
Chief. Recalls shall be taken from the recall list which will be by the last
recall date or by date of hire. A message will be left on an answering
machine or voice mail. When the member calls back, if the position is filled,
no compensation is due. A member's name will not be removed from the
recall list if he/she refuses the call back because the day for which he/she was
called required that he/she work while on vacation or holiday if the recall
creates 72 hours or more hours of continuous work. Provided there is an
opening available, any Firefighter called back may be assigned to work
within his/her designated rank. Any call back of less than 17 hours will not
remove an employee from his/her position on the recall list.

. . .

ARTICLE XXIX

WORK OUT OF CLASS AND TRADES

. . .

The City and Local 321, IAFF, agree that the parties are not bound by past practices,
if any, concerning application of work trades, and such past practices are hereby
terminated.

. . .

POSITIONS OF THE PARTIES

It is the position of the Union that the failure to include the word "or" in the 2006
-2008
contract was a "scrivener's" mistake, a mutual mistake and asks the Arbitrator to reform the
contract
to correct the error. As corrected, the Union contends that the language is clear and
unambiguous.
The Union reviews the history of the City proposal and the various tentative agreements.
Each points
to an agreement to include the word "or" in the contract. The Union points to testimony of
its
bargaining team members that no one from the City ever indicated that the terms of the
tentative
agreement were to be modified.

The Union cites authority for the proposition that where there is a mutual mistake as
to the
terms of the contract, the appropriate remedy is for the Arbitrator to reform the written
provisions
of the contract to conform to the intent of the parties.

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The Union argues that the clause, as written, is both ambiguous, and contradicts
departmental
policy. The Union points to testimony from City witnesses that firefighters are not called
back on
days 2 or 4 because to do so would cause them to work 72 hours in a row. If the clause were
read
literally, it would mean that a firefighter would be bumped if he or she refused a recall on a
vacation
or holiday unless it would also have the consequence of causing a firefighter to work 72
hours in a
row. That is not how the provision is administered.

The Union points to Chief Madisen's testimony that it was his recollection that the
language
was only to be applicable to days 2 and 4. The Union contends that this testimony only
makes sense
if the word "or" is included.

The Union contends that the past practice of the parties is to administer the contract
consistent with the Union's interpretation.

It is the view of the City that the terms of the collective bargaining agreement are
clear and
unambiguous. The City argues that the Union is attempting to use parole evidence to re write
the
agreement.

The City notes the tentative agreement documents drawn from the 2006 negotiations,
but
contends that none of the documents is signed and further contends that there is no evidence
that
those documents represent the actual agreement of the parties beyond the self-serving
testimony of
union members.

The City takes issue with the existence of a practice favoring the union. The City
notes that
Union witnesses could not identify specific dates, and that many of the instances which were
referenced occurred before 2008.

The City contends that the language is clear as written. The right to refuse a call
back
and not
be sent to the bottom of the recall list is tied to a vacation day or a holiday. The City cites
authority
for the proposition that if the language is clear and unambiguous an Arbitrator should not
look to
extrinsic evidence to strip the agreement of its plain or ordinary meaning.

The City argues that the Arbitrator cannot consider parol evidence in this proceeding.
The
employer cites the Parol Evidence Rule:

When parties to a contract embody their agreement in writing and intend the writing
to be the final expression of their agreement, the terms of the writing may not be
varied or contradicted by evidence of any prior written or oral agreement in the
absence of fraud, duress, or mutual mistake.

It is the position of the City that there is no evidence suggesting that the parties
intended
anything other than what was written. As to the alleged tentative agreements, the City
contends that
there is nothing to suggest that they were an actual agreement between the

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parties. The City does not consider them as evidence of anything, and believes they are
supported
by purely self-serving testimony.

The City contends that the parol evidence offered is applicable to the 2006-2008
contract.
Whatever value such evidence may have with respect to that contract requires a stretch of
monumental proportions to rewrite a contract two generations hence.

The City cites Article XII, par. 5 to caution me that the parties have expressly limited
the
authority I exercise to "not modify, add to or delete from the express terms of this
Agreement"

The City also points to Article XXIX for the proposition that past practices relating to
work
trades are terminated. The City cautions that I should not consider any past practice in this
matter,
since the underlying dispute arose in the context of a work trade.

DISCUSSION

I believe the record establishes that the word "or" was negotiated to be a part of the
collective
bargaining agreement, and subsequently deleted from the final draft of the contract. The
Union
introduced four separate documents, purporting to be the tentative agreement of the parties.
Each
contained the disputed word. Their status as tentative agreements of the parties was
supported by
the testimony of Union called witnesses. The City regards the exhibits as unpersuasive and
the
testimony as self-serving.

However, the City called two witnesses to testify, Battalion Chief James Madisen and
Fire
Chief Steven Hansen. Chief Madisen indicated, on cross examination, that a firefighter can
refuse
a call in, without consequence, if called to work on a vacation or holiday, without regard to
whether
it results in a 72 hour work cycle. The testimony of Fire Chief Steven Hansen confirms that
fact.
When asked the meaning of the "if the recall creates 72 hours or more continuous hours of
work.",
Madisen indicated that he felt "This is bad language in my opinion." The essence of this
testimony
is that the operations reality is that the 72 continuous hours clause has no meaning.

Madisen offered insight as to the origins of the language in dispute. He offered this
testimony
as to the purpose of the language:

There is a long-standing past practice of which shift is the on-call shift and
that is defined in other places in the contract. But that has never been spelled out and
there was no prohibition in the contract previous to '06 that said we could not call
persons and bump them to the bottom of list for those two days, days 2 and 4. So my
recollection--my honest recollection from 2006 when this language appeared was
that this was both sides - city's and management's ­ effort to provide some protection
for the members for that day 2 and day 4 situation.

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Q: Was there an intention that applied to Days 6, 7, 8, and
9?

A: There was not, not to my recollection.

Chief Hansen concurred in this testimony.

If Madisen's and Hansen's recollection as to the purpose of the language is correct,
the
inclusion of the word "or" makes sense. Inclusion of the term would serve to insulate a
firefighter
from recall on a day sandwiched between two scheduled days. Without the word "or" the
sentence
does not address that scenario, and seems not to address the circumstance which prompted
the
proposal. Indeed, the proposal includes the word "or".

Chief Hansen testified that he was present for some of the 2006 negotiations. It was
his
testimony that tentative agreement summaries were prepared by Vic Long, who was the
city's labor
negotiator at the time.

All record testimony supports a finding that the word "or" was negotiated into the
contract.

There is no explanation as to how the word "or" disappeared in the final document.

By its own definition the Parol Evidence Rule is not intended to be applicable to
situations
where there exists fraud, duress or mutual mistake. The claim in this proceeding is that a
mutual
mistake occurred. It has always been the rule that Parol Evidence is admissible to determine
whether
or not there exists mutual mistake, fraud or duress. To prevail in such a claim three elements
must
be proved by clear, satisfactory, and convincing evidence. Those elements are (1) the parties
reached
an agreement; (2) the parties intended that such an agreement be included in the written
expression
of agreement; and (3) the oral agreement was not included in the written expression because
of the
mutual mistake of the parties. Frantl Indus., Inc. v. Maier Constr., Inc., 68
Wis. 2nd 590, 592-3
(1975), cited in Tyler v. Schoenherr and Associated Banc-Corp., Ct. App., No.
2011 AP 2075
(7/12/12).

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I believe the elements are present in this case. The parties did come to an agreement.
The
various tentative agreement documents establish as much. All evidence suggests the tentative
agreements were to be included in the contract. The agreement reached by the parties was in
written
form, and thus more defined and certain than an oral agreement. It did not reach the
collective
bargaining agreement by error. Contract reform is the appropriate remedy under
circumstances of
mutual mistake. (Tyler, supra.)

This outcome would follow if the contract had been unilaterally changed. The Union
would
have been entitled to notice of a last minute unilateral change. (Hennig v.
Ahearn, 230 Wis. 2nd 149,
601 N.W. 2d 14 (Ct. App. 1999)). Reformation would also be the
appropriate remedy under the
circumstance of unilateral modification (Park Terrace, LLC v. Transportation
Insurance Company,
338 Wis. 2nd 484 (2011).

It is the view of the City that Article XII restricts the authority of the Arbitrator to
modify
provisions of the contract. Specifically, Article XII prohibits the Arbitrator from adding to
the
express terms of the contract. The question posed in this proceeding is what are the express
terms
of the contract? Contract reformation asks whether or not the written agreement accurately
reflects
the final and complete expression of the parties agreement. (Town Bank v. City Real
Estate
Development, LLC., 2010 Wi. 134, 330 Wis. 2nd 340, (12/14/10)).
I believe the parties negotiated
a contact that included the word "or" in the operative sentence. This decision does not add to
or
modify that agreement.

The collective bargaining agreement calls for a Private to earn $64,318.28 annually,
at the
end of a 36 month period. If this case involved a misplaced decimal point, which presented
that
salary as $643,182.8 per year no one would be heard to argue that Article XII served as a
bar to the
correction of the error.

Arbitrators have generally followed the path taken by the courts in this area. Contract
reformation of collective bargaining agreements have occurred following mutual mistake. See
Elkouri & Elkouri, How Arbitration Works,
6th Edition, BNA, 2003 and 2010 Supplement; see also
The Common Law of the Workplace, 2nd Ed.,
2005, BNA.

Both parties made arguments relative to the interpretive practice surrounding the
clause. In
light of the above, it is not necessary to address those arguments.

AWARD

The grievance is granted.

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REMEDY

Private Rasmussen is to be placed at the top of the recall list, and provided with
recall
opportunity(ies) consistent with this Award. Once he has exercised his rights to accept or
decline
recall from the top of the list, he is to be placed back on the recall list where he was at the
time he
was moved to the top.